Vinod Sharma vs Delhi Development Authority
2012 Latest Caselaw 6590 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of decision: 19th November, 2012

+                              LPA No.753/2012

      VINOD SHARMA                                      ..... Appellant
                  Through:           Mr. R.K. Saini with Mr. Vikram
                                     Saini, Advs.

                                  Versus

      DELHI DEVELOPMENT AUTHORITY             ..... Respondent

Through: Mr. Arun Birbal, Adv.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra court appeal impugns the judgment dated 15 th March, 2012

of the learned Single Judge dismissing WP(C) No.2076/2010 preferred by

the appellant. Though the appeal is accompanied with applications for

condonation of 5 days delay in filing and 143 days delay in refiling the

appeal and there does not appear to be any plausible explanation for such

delays but we have nevertheless heard the counsel for the appellant on

merits also.

2. The appellant was the highest bidder in the auction held by the

respondent DDA on 22nd June, 2006 of Commercial Shop bearing Unit F-2,

CSC No.2, Preet Vihar, G Block, Delhi. He had made an earnest money

deposit of Rs.5,00,004/- and had made a bid of Rs.20,00,016/-. The said bid

was accepted and the DDA vide its letter dated 10 th August, 2006 demanded

the balance total amount of Rs.15,00,057/- within 30 days i.e. by 9th

September, 2006 and with interest as provided within 180 days i.e. by 9 th

March, 2007. Admittedly the petitioner did not deposit the demanded

amount by the stipulated date and could pay only a further sum of

Rs.10,50,000/-, leading to cancellation of his bid and forfeiture of earnest

money deposit in terms of auction/allotment letter and which was also

intimated vide letter dated 8th May, 2007 of the DDA.

3. The petitioner then did not challenge the said cancellation/forfeiture.

On the contrary he made a representation dated 15th May, 2007 seeking

further two months time to pay the balance amount. The said representation

having not elicited any response, was followed by representations dated 26th

July, 2007 and 26th September, 2007. DDA vide its letter dated 12th

November, 2007 rejected the said representations.

4. The petitioner still did not challenge the rejection of his

representations and claims to have made further representations in the years

2008 and 2009, which were also rejected vide letter dated 2nd March, 2009

of the respondent DDA.

5. The petitioner however claims to have continued to make

representations. It appears that the DDA published advertisements dated

28th February, 2010 and 17th March, 2010 inter alia inviting tenders for the

said shop, with a reserved price of Rs.77,71,250/-. It was then that the

appellant filed the writ petition from which this appeal arises averring that

DDA, instead of losing from the default earlier made by him in making

payment, was benefiting by earning enhanced price of the shop and seeking

the relief of restoration of his allotment of the said shop and grant of one

month's time to make the balance payment; alternatively direction to the

DDA to share with the appellant 3/4th of the increased price earned from the

said shop, was sought. Another alternative prayer, for refund of the entire

amount of Rs.15,50,000/- paid by the appellant was also claimed.

6. Notice of the writ petition was issued only on the aspect of that the

DDA could have at best forfeited only the earnest money of Rs. 5,00,004/-

and not the further payment of Rs.10,00,050/- made by the appellant.

7. DDA contested the writ petition pleading, that in terms of allotment

letter, upon the appellant failing to make the payment in the stipulated time,

the allotment stood cancelled automatically; that the explanation furnished

by the appellant of his inability to make the payment were considered, but

not found acceptable by the Competent Authority of the DDA; that the

appellant had not come forward to take refund of the amount paid over and

above the earnest money and lastly that the matter being contractual was non

interferable in exercise of powers under Article 226.

8. It appears that the respondent DDA could not sell the subject shop in

the auction advertised in the year 2010 also. The appellant as such renewed

his request during the pendency of the writ petition for allotment of the shop

to him. The said plea has been rejected by the learned Single Judge in the

impugned judgment observing that the notice issued of the petition having

been confined only to the right if any of the DDA to forfeit monies paid by

the appellant in excess of the earnest money and merely because the shop

had remained unsold was no reason to allow the scope of the writ petition to

be expanded.

9. DDA having not opposed the claim for refund of the monies paid by

the appellant in excess of earnest money, the writ petition was disposed of

giving liberty to the appellant to approach the DDA for refund of the said

excess amount and with a direction to the DDA to, upon on the appellant

completing all the formalities, refund the same within four weeks.

10. The delay by the appellant in filing and refiling this appeal is

consonance with the consistent conduct of the appellant since the year 2006

and delays in making the payment.

11. The counsel for the appellant has before us also contended, that the

shop having remained unsold, the allotment of the year 2006, against which

the appellant has paid substantial monies, should be restored.

12. As noticed above notice of the writ petition on 25 th March, 2010 was

issued limited to the prayer of refund of the amount paid in excess of earnest

money and the prayers in the writ petition claiming the relief of restoration

of allotment and of sharing with the appellant the increase in price of the

shop, were dismissed on that date only. Significantly, the appellant did not

challenge that order. Though at the time of disposal of the writ petition the

relief for restoration of allotment was again pressed but orally and the

learned Single Judge in our opinion rightly refused to expand the scope of

the writ petition beyond which the notice had been issued thereon. We put

our imprimatur on the finding of the learned Single Judge that merely

because the shop has remained unsold is no ground to restore the contract

which was breached by the appellant himself and which stood cancelled

more than 5 years ago on 9th March, 2007. It cannot be lost sight of that this

Court is exercising powers of judicial review, that too in contractual matters

and without any error having been found in the decision of the DDA, of

cancellation of allotment in terms of the contract and its policy, and of

rejection of the request by the Competent Authority of the DDA to grant any

extension, this Court cannot make a new contract between the parties.

13. As far as the claim of the appellant for refund of the entire amount is

concerned, it is not disputed that the terms of auction as well as allotment

provided for forfeiture of the earnest money. Even though the DDA

subsequently attempted to sell the shop at a much higher price but as per the

appellant himself, has been unsuccessful. The loss thus caused to the DDA

on account of the breach of contract by the appellant is writ large and this

Court cannot in exercise of powers under Article 226 interfere. There is yet

another aspect to the matter. The forfeiture, as aforesaid, took place on 9th

March, 2007. The limitation prescribed for filing a suit for declaration of the

forfeiture as bad and for recovery of the earnest money, of three years

expired on 8th March, 2010. The writ petition was filed only on 22 nd March,

2010. Thus on the date of filing of the writ petition, the suit for recovery of

the forfeited amount would have been barred by time. Writ remedy cannot

be allowed to be used particularly in the said facts, for realization of time

barred claims.

14. Though the counsel for the appellant has not argued but the appellant

is also not found entitled to any interest on the excess payment of Rs.

10,50,000/- which has been permitted to be refunded, inasmuch as the

appellant never demanded or came forward to collect the said amount; rather

the appellant continued to represent for restoration citing the said payments;

when the non release of the said amount to the appellant is attributable to the

appellant's own action, the appellant cannot be entitled to any interest.

15. We therefore do not find any merit in the appeal which is accordingly

dismissed. We refrain from imposing any costs on the appellant.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE NOVEMBER 19, 2012 'M'